Question # 294: Punishment for Rape in Islam

Question # 294: The brutal gang-rapes and murders of young and infant girls have provoked mass protests across India and social media campaigns for justice and safety. Can you inform what is the punishment for rape in Islam?

Bismi-llahi r-raḥmani r-raḥīm,

Assalamu ‘laikum warahmatullahi wabarakatuh,

All praise and thanks are due to Allah (سبحانه و تعالى), and peace and blessings be upon His Messenger (صلى الله عليه و سلم).

Dear questioner,

First of all, we implore Allah (سبحانه و تعالى) to help us serve His cause and render our work for His sake.

Shorter Answer: According to fuqaha, Rape is forcing a woman to commit unlawful sexual intercourse (zina bi al-jabr) against her will, i.e., when there is no consent and no deliberate action from the victim or with the consent of the victim, when the consent has been obtained by putting the victim in fear of death or of hurt. This includes instances when the condition of the victims prevents them from expressing their resistance, such as insanity, sleep or being underaged.

The penalty of a rapist differs based on the consequences and circumstances of the way the crime was committed. It is punishable in some circumstances by the hadd[1] of zina (i.e., being stoned to death) as well as in some circumstances by the hadd of Hirabah[2] and it is also complemented by ta’zir[3]. As for Hirabah, if the heinous crime of rape was committed by putting the victim in fear of death or of hurt, then the offender is to be subjected to the hadd punishment described in the Qur’an. So, the judge has the choice of issuing a sentence of execution, crucifixion, cutting off a hand and foot on opposite sides, or exile from the land, based on ijtihaad[4] and paying attention to the situation of the criminal and the circumstances of the crime, as well as its impact on society and to attain the objective of spreading peace and security and ward off evildoers and aggressors. However, if the offender has killed the victim, he should definitely be executed. The majority of jurists also opine that financial compensation should also be paid to the victim.

Long Answer:

DEFINITION OF RAPE IN ISLAMIC LAW

Rape is translated in Arabic as ightisab or zinabi al-ikrah, which literally can be translated back to English as forcible unlawful sexual intercourse. The word ightisab, or its root ghasb literally means usurpation, illegal seizure, coercion, ravishing, violation and rape. According to Ibn Manzur, both ightasaba and ghasaba are interchangeable in Arabic when used to mean rape… The terms ghasaba and ightasaba have been used by traditional jurists to express the meaning of sexual assault. The jurists also use a direct conclusive legal meaning of rape, that is, al-ikrah‘ala al-zina.

Before defining rape in Islamic Law, it is necessary to investigate the juristic definition of zina or illegal sexual intercourse, because most jurists take it into account as part of the definition. Knowing the legal meaning of zina is crucial, since a conviction is based on what constitutes the crime. That is why the Prophet (صلى الله عليه و سلم) said to Ma’iz al-Aslami, who had confessed that he had committed zina, ‘You might have kissed or touched her’. Such actions are not considered to be the constituents of zina. However, Ma’iz denied them all. Then the Prophet (صلى الله عليه و سلم) asked him: ‘Hal nakattaha?’ (Did you penetrate her?). That is the most understandable word for sexual intercourse. (Al-Albani, Da’if Abu Dawud)

In the same hadith as narrated by Abu Hurayrah (رضي الله عنه), the Prophet (صلى الله عليه و سلم) asked Ma’iz: ‘Was the penetration like the stick entering the kohl jar or the rope entering the well?’ He said: ‘Yes’. The Prophet (صلى الله عليه و سلم) asked Ma’iz another question: ‘Do you know what zina is?’ He answered: ‘Yes, I do, and I committed an unlawful act which a husband and wife do lawfully’.

In this hadith, the Prophet (صلى الله عليه و سلم) emphasized the criteria that must be fulfilled for the action to be classified as zina. The detailed reports of this event, as well as other ahadith are the main reference for jurists when formulating the legal definitions of zina and rape. The Hanafites define zina as ‘unlawful vaginal intercourse with a living woman who is not a right-hand possession (milk al-yamin) (slave), not in the quasi-ownership of the man or not freely married or quasi-married in an Islamic state’.

The legal meaning of zina has been defined by the Malikites, Shafi’ites and Hanbalites as the unlawful and mutually consensual vaginal or anal intercourse between a man who is sane and who has reached the age of puberty (bulgh) and a woman who is not in his ownership.

The legal definition of zina is significant when defining rape, as most jurists hold that rape is committing zina by force. For instance, al-Shafi’i regards rape as forcing a woman to commit zina against her will. According to the Hanafites, illegal intercourse is considered rape when there is no consent and no deliberate action from the victim.

In Malik’s view, rape refers to any kind of unlawful sexual intercourse (zina) by usurpation and without consent. This includes instances when the condition of the victims prevents them from expressing their resistance, such as insanity, sleep or being underaged.

The Hanbalites, similar to the Malikites, take into account any kind of force used as a denial of consent from the victim. They even consider the threat of starvation or suffering the cold of winter to be regarded as against one’s will.

From these juristic opinions, rape can be defined in Islamic law as forcible illegal sexual intercourse by a man with a woman who is not legally married to him, without her free will and consent. Considering illegal sexual intercourse (zina) as part of rape reveals the criminal conceptual elements in which the purpose of rape is to have sexual excitement and pleasure regardless of the means and extent of the force used.

Finally, the modern definition of rape according to some Muslim authorities seems to derive from the opinions of those traditional jurists. In Pakistan, s 6 of the Enforcement of Hudood Ordinance (VII of 1979) provides the definition and punishment of rape or what is termed as zina bi al-jabr (forcible illegal sexual intercourse). It states: ‘A person is said to commit zina bi al- jabr, i.e., rape, if he or she has sexual intercourse with a woman or man, as the case may be, to whom he or she is not validly married, in any of the following circumstances, namely against the will of the victim; without the consent of the victim; with the consent of the victim when the consent has been obtained by putting the victim in fear of death or of hurt, or with the consent of the victim who gave consent in the belief that the offender is a person to whom she is validly married’.

DIFFERENCES BETWEEN RAPE AND ZINA

Although rape is known as zinabi al-ikrah, it is different from zina itself because rape is a physical assault which necessarily causes bodily harm. While the victim is trying to resist her aggressor, the rapist will use whatever force he needs to fulfil his intention, and this may even include killing the victim. When the victim is raped, the intercourse is painful, whereas it is an enjoyable experience for the participants in fornication. Rape is also psychologically destructive, because the victim will usually suffer from severe trauma for a long time. Therefore, the victim of rape is not regarded as an adulterer. However, those who indulge in zina are willing participants and so there is no victim. Rape is a violation of honor. The woman participating in fornication is willing to lose her honor (or virginity in the case of a virgin) and to allow the man to ruin her chastity and reputation. Zina is regarded as a violation of the right of Allah, whereas rape is regarded as the violation of not only the rights of Allah but also those of a human being. It should be noted that proving the rights of Allah is much more difficult than proving the rights of human beings, as these rights can be more easily restored when violated.

THE PUNISHMENT FOR A CONVICTED RAPIST

The penalty for a convicted rapist has been considered to be the same as for the hadd of zina, the hadd of Hirabah or to come under the category of ta’zir.

The Hadd of zina

Ibn Rushd observes that most scholars agree with applying the hadd penalty for zina to a convicted rapist. This means that the convict will receive a similar punishment for the offence of zina, that is, being stoned to death for the married (muhsan) or receiving 100 strokes of the whip and deportation for the unmarried (ghair-muhsan).

They base their argument on a hadith of ‘Abd al-Jabbar Ibn Wa’il which reports a rape case at the time of the Prophet (صلى الله عليه و سلم). The victim was excused while the convicted person who had forcible illegal intercourse with her was sentenced to being stoned to death.

However, they disagree on the second part of the penalty, i.e., whether the convicted rapist had to pay a dowry besides being sentenced to the hadd penalty. The majority of the jurists, including Malik, Shafi’i, the Hanbalites and Laith Ibn Sa’ad take the stance of punishing him with both the hadd and sadaq (dowry). The same opinion is reported by ‘Ali ibn Abi Talib, Ibn Mas’ud, Sulaiman Ibn Yasar, Rabi’ah and ‘Ati’.

Malik generalizes the verdict to cover an insane woman and also an unconscious sleeping woman. His argument is based on the fact that rape involves the right of Allah and the right of an individual and these must be dealt with separately. Both respectively deserve different treatment, as is the ruling in the case of stealing. The Malikites make no difference between a victim who is a virgin and one who is not in terms of receiving dowry compensation. They support the notion of imposing a dowry in addition to the hadd penalty with the hadith: “If any woman gets married without the permission of her wali (guardian), the marriage is nullified. If the man consummates the marriage with her, he is obliged to pay her the dowry for the legitimizing of the sexual relation. If there is a conflict, the sultan, i.e., authority, is the wali for those who have no wali.” (sahih)

In another hadith, the Prophet (صلى الله عليه و سلم) decreed that the husband has to pay the dowry for an invalid marriage when the woman has not completed her ‘iddah‘ (sahih). This Hadith indicates that the action of ‘legalizing’ sexual intercourse itself is the concerned issue which leads to imposing a dowry. (Ibn Qudamah, al-Mughni)

The Shafi’ites support the idea of imposing a dowry based on the analogy (qiyas) that a rape is similar to an invalid marriage (nikah fasid) where if there had been consummation, the husband has to pay the fair mahr. Likewise, the perpetrator is considered to be liable for redemption (‘aman) in a rape case because of the consummation (intercourse).

Besides a fair dowry, the Shafi’ites impose arsh/diya if the man has caused injury to the hymen of virginity. This is because infringing the property of others, which is similar to destroying the property or food of others, must be recompensed. Ibn Qudamah opposes this opinion arguing that the dowry itself entails all sorts of compensation. According to him, a virgin victim must be given a higher compensation than a widow because of her virginity. This extra payment is part of that arsh. (Ibn Qudamah, al-Mughni)

According Ibn Qudamah, the criminal has to pay diya if the victim becomes pregnant and dies while delivering the child because this had been caused by the violence of the rapist. Abu Hanifah, Thauri and Ibn Shubrumah hold the opinion that a rapist is liable for the hadd penalty only, and not for the dowry (sadaq). They argue that when the right of Allah meets the right of individuals, the right of Allah prevails. They also argued that sadaq is not a price for sexual pleasure, but it is meant for ritual purposes. Therefore, there should be no sadaq for the illegal intercourse. However, Abu Hanifah asserts that if a man has intercourse with a free woman by force and she dies because of the violence, he must pay diya besides being liable for the hadd penalty.

These three base their argument on the very same hadith of ‘Abd al-Jabbar Ibn Wa’il which clarifies that no dowry was charged on the man. According to the version recorded by al-Tirmidhi’s and al-Nasa’i, it is clearly mentioned that there was no monetary penalty (sadaq).

It is worth mentioning that this occasion was the only case that occurred at the time of the Prophet (صلى الله عليه و سلم) in which the criminal was married, and after comparing several texts, it is safe to say that the punishment was the hadd penalty of being stoned to death. Another interesting fact about this incident is the fact that it was not accompanied by violence and physical attack.

Hadd of Hirabah as a penalty for rape

The modern tendency in punishing rape is to consider rape as hirabah which requires the penalty of haddal-hirabah. Thus, the rapist will be categorized as an outlaw and as a person who is dangerous for the peace and security of society. This group of people and their punishment is mentioned in the following verse of the Qur’an: “The recompense of those who wage war against Allah and His messenger and do mischief in the land is only that they shall be killed or crucified or their hands and their feet be cut off on opposites sides or be exiled from the land. That is their disgrace in this world, and a great torment is theirs in the Hereafter” (Soorah al-Maidah, 5:33)

Among the modern authors who support this opinion are Sheikh Muhammad Ali al-Hanooti, Asifa al-Qureshi, Muhammad Shahhat al-Jundi, Muhammad Tayyib al-Najjar and Muhammad Salim al-‘Awwa. The Religious Council of Egypt (Dar al-Ifta al-Misriyyah) has issued a fatwa that the crime of a violent attack which involves forcible sexual intercourse is an act of Hirabah. They support this opinion by making reference to some traditional jurists. Al-Tabari, for example interprets al-fasad as causing mischief and chaos on the earth by whatever means of violence including usurping the property and honor of others.

The Malikites regard hirabah as an act of aggressive assault although it does not involve taking valuables. Some of them, like Ibn ‘Arabi, clarify that the infringement of honor i.e., rape is more serious than the taking of property.

Their argument is that rape has such elements of assaults as some jurists include rape as part of the crime. It is inevitable that rape has the elements of physical assault similar to hirabah which is regarded as fasad or mischief and causing trouble. There are elements of hirabah in some rape cases, like using force, frightening, usurpation and torture.

Asifa says: “This cursory review of traditional Islamic Shari’ah shows that the crime of rape is not a subcategory of zina, but rather a separate crime of violence under Hirabah. This classification is logical because the taking is of the victim’s property (the rape victim’s sexual autonomy) by force. In Islam, sexual autonomy and pleasure is a fundamental right of both women and men.”

Some jurists prefer to classify rape as a hirabah crime for reasons of prosecution. According to Asifa zina requires a high standard of proof. Hirabah does not require four witnesses to prove the offence, unlike zina. Circumstantial evidence and expert testimony, also, presumably form the evidence used to prosecute such crimes. In addition to using eyewitness testimony, medical data and expert testimony, a modern hirabah prosecution of rape would likely take advantage of modern technological advances such as forensic and DNA testing. Finally, the classification of rape as hirabah promotes the principle of honoring a woman’s dignity, as is established in the Quranic verses on zina. Rape as Hirabah is a separate violent crime which uses sexual intercourse as a weapon. The focus in a hirabah prosecution would be the accused rapist, his intent and physical actions, rather than just guessing the consent of the rape victim, which, as we have seen, is likely to happen if rape is classified as a type of zina. In addition, there is no consideration of marital status in the case of hadd of hirabah. (‘Her Honour: An Islamic Critique of the Rape Provisions in Pakistan’s Ordinance on Zina’ by Asifa Qureishi)

[Further, the Council of Senior Scholars in the Land of the Two Holy Sanctuaries, under the leadership of Shaykh ‘Abd al-‘Azeez ibn Baaz (may Allah have mercy on him) issued a statement concerning these crimes, in which it says:

“The Council has studied what the scholars have mentioned about the shar’i rulings which in general dictate the obligation to protect the five essentials of life and ensure that they remain safe. They are: religion, life, honor, mental health and wealth. Islam acknowledges the great danger that can result from crimes of aggression against the sanctity of the Muslims’ lives, honor and wealth, and the threat to public security that this can pose in the land.

Allah has guaranteed protection for the people’s religion, physical well-being, lives, honor and mental health by means of the punishments which He has prescribed to attain security on both the public and private levels. Implementing the verse concerning the hadd punishment for hirabah in accordance with the rulings of the Prophet (صلى الله عليه و سلم) concerning muhaaribeen guarantees security and peace of mind, and deters those who would think of committing such crimes and transgressing against the Muslims…”

The Council has further determined the following:

“The crimes of kidnapping, robbery and transgression of the Muslims’ sanctity by way of open and audacious hostility is a type of muhaarabah (waging war against Allah and His Messenger) and doing mischief in the land, which deserves the punishment mentioned by Allah in the verse in al-Ma’idah, whether that aggression is against people’s lives, wealth or honor, or it is scaring wayfarers and cutting off routes (banditry). It makes no difference whether that happens in cities, villages, the desert or the wilderness, as is the correct view of the scholars (may Allah have mercy on them).

Ibn al-‘Arabi said, telling of the time when he was a judge: Some bandits were brought before me who had gone out to attack a group of travelers. They took a woman by force from her husband and the group of Muslims who were with him and carried her off. Then they were hunted down, caught and brought to me. I asked one of the muftis with whom Allah tested me about them and he said that they were not muhaaribeen, because hirabah (the crime of waging war against Allah and His Messenger) applies only with regard to wealth, not rape! I said to them: To Allah we belong and unto Him is our return. Do you not know that hirabah (aggression) against honor is worse than aggression against wealth? All people would agree to lose their wealth and have it confiscated from them rather than to see aggression committed against their wives or daughters. If there were any punishment more severe than that which Allah has mentioned, it would be for those who kidnap women…

The majority of the Council believes that the deputies of the ruler – the judges – have the obligation to prove the type of crime and to pass judgement accordingly. If it is proven that it is a crime that constitutes war against Allah and His Messenger (muhaarabah) and spreading mischief in the land, then they have the choice of issuing a sentence of execution, crucifixion, cutting off a hand and foot on opposite sides, or exile from the land, based on their ijtihaad and paying attention to the situation of the criminal and the circumstances of the crime, as well as its impact on society and what may best achieve the interests of Islam and the Muslims, unless the muhaarib has killed, in which case he should definitely be executed, as Ibn al-‘Arabi al-Maaliki narrated that there was consensus among the scholars on this point. Among the Hanbalis, the author of al-Insaaf said: There is no dispute on this point. (From a paper published by the Council of Senior Scholars under the title ‘al-Hukm fi’l-Satw wa’l-Ikhtitaaf wa Muskiraat’)

… [Hence, if the heinous crime of rape was committed] …at knife-point or gun-point [by putting the victim in fear of death or of hurt], …then [the offender] is a muhaarib, and is to be subjected to the hadd punishment described in the verse in in al-Ma’idah. So, the judge has the choice of the four punishments mentioned in this verse and may choose whichever he thinks is most suitable to attain the objective, which is to spread peace and security in society, and ward off evildoers and aggressors. (Shaykh Muhammad Saalih al-Munajjid)]

Rape as Ta’zir

Some modern researchers consider rape as a ta’zir offence. This is because any offences which have not been prescribed in the authentic sources are categorized as ta’zir crimes. Some conclude that rape deserves a ta’zir penalty when a conviction is reached as a result of circumstantial evidence, such as marks of violence on the genitals, marks of violence on the body of the victim or accused, the presence of semen or blood-stains on the body or clothes of the victim or accused, or a medical report, all of which are sufficient for ta’zir only.

CONCLUSION

The penalty of a rapist differs based on the consequences and circumstances of the way the crime was committed. It is punishable in some circumstances by the hadd of zina as well as in some circumstances by the hadd of Hirabah and it is also complemented by ta’zir. The penalty of rape is very severe but it must be based on conclusive and definitive evidence as well as scrupulous inspection of mitigating and aggravating reasons. The Islamic Court should be given greater jurisdiction to decide on the penalty.

The jurists’ opinion of imposing the zina penalty reflects the severity of the crime. This type of penalty is chosen on the grounds that a sentence for hadd crimes is mandatory and the same for all offenders. The problem of disparity will not arise in sentencing. Capital punishment for a rapist is also justifiable based on the principle of siyasah shar’iyyah (policy that is based on the Qur’an and Sunnah, by the ruler administering justice and the subjects giving loyalty and obedience). The ruler should regulate the most effective penal system in order to combat the crime even by imposing the death penalty.

The majority of jurists also opine that financial compensation, i.e., a dowry, should also be paid to the victim. Besides, other related injuries and fatalities associated with rape must be recompensed accordingly. Trauma, homicide and other consequences could be evaluated based on the idea of jirah (crimes particularly of physical attacks against individuals which cause bodily injuries).

(Most part of the above answer is based on the Article ‘Punishment for Rape in Islamic Law’ (Malayan Law Journal Articles,2009) by Dr Azman Mohd Noor, Assistant Professor Department of Fiqh and Usul al-Fiqh International Islamic University Malaysia, unless stated otherwise)

[1] The Penal Law of Islam are called Hudud (plural of hadd) in Hadith and Fiqh. Hadd means prevention, hinderance, restraint, prohibition, and hence a restrictive ordinance or statute of Allah, respecting things lawful or unlawful. The Hadd is a punishment the limits of which have been defined in the Qur’an and the Sunnah. (‘The Penal Law of Islam’ by Muhammad Iqbal Siddiqi)

[2]Hirabah is actually referred to Armed Robbery, whereby the basic element is the taking of someone else’s property by force. The punishment for Hirabah is in the Hadd category as is stated in the Qur’an (Soorah al-Maidah, 5:33) (‘Punishment in Islamic Law – A Comparative Study’ by Mohamed S. El-Awa) Based on a fatwa, the crime of a violent attack which involves forcible sexual intercourse is an act of Hirabah.

[3] Ta’zir is the punishment which is left to the discretion of the court in regard to the form and measure in which such punishment is to be inflicted. It is applicable to those crimes for which Hudud have not been prescribed. (‘The Penal Law of Islam’ by Muhammad Iqbal Siddiqi)

[4] Independent reasoning or the thorough exertion of a jurist’s mental faculty in finding a solution to a legal question